First Circuit upholds right to record traffic stops

The U.S. Court of Appeals in Boston (1st Cir.) recognized last week a First Amendment right to video record a traffic stop that occurs in a public place. The court’s decision allows Carla Gericke to continue a civil rights lawsuit she brought against a New Hampshire police department.

In March of 2010, New Hampshire police charged Gericke with violating a state law that prohibits the unlawful interception of oral communications after Gericke appeared to use her video camera to capture a late-night traffic stop.

Even though prosecutors declined to pursue the charges, Gericke brought a suit claiming her First Amendment right to free expression was violated when the police charged her with illegal wiretapping in response to her decision to videotape the stop.

In declining the police department’s motion to dismiss the case, the court wrote that filming the police in public serves the cardinal First Amendment interest of “protecting and promoting ‘the free discussion of governmental affairs.’” In reaching its decision, the court acknowledged the role newsgathering plays in uncovering official abuse and ensuring governmental efficiency.

The court declined, however, to recognize an absolute right to record traffic stops. Noting that traffic stops can be “fraught with danger” for police officers, the court wrote that an officer may prohibit an individual from filming his conduct “if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.”

The court’s decision expands on the First Circuit’s decision in Glik v. Cunniffe. There, the First Circuit ruled that an individual had a First Amendment right to record an arrest that occurred on the Boston Commons.